Bombay High Court
Resecue Foundation Through Its ... vs State Of Maharashtra And 2 Ors on 25 January, 2021
Bench: A.A. Sayed, Madhav Jamdar
k
1/10
1 wpl 1749.21 os.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.1749 OF 2021
...
Rescue Foundation -
Through its Superintendent
Mrs. Sharada Khulat & Anr. ...Petitioners
v/s.
State of Maharashtra & Ors. ...Respondents
....
Mr. Ashley D. Cusher for the Petitioners.
Ms. P.H. Kantharia, GP for the Respondents/State.
...
CORAM : A.A. SAYED &
MADHAV JAMDAR, JJ.
DATED : 25 JANUARY 2021
P.C.:
1 The above Petition has been filed on behalf of a 14-year old minor
tribal girl (hereinafter referred to as XYZ) by Rescue Foundation, which is
an NGO, through its Superintendent Mrs. Sharada Khulat and seeks an
order to terminate her pregnancy of 26 weeks.
2 Leave to amend to implead the mother of XYZ, as party Petitioner
No.2 to the Petition. Amendment to be carried out forthwith. Learned
Advocate for the Petitioners has identified the Petitioner No.2. Associate of
this Court is permitted to re-verify the Petition on the basis of identification
by her Advocate.
K 1/10
::: Uploaded on - 25/01/2021 ::: Downloaded on - 08/02/2021 18:47:29 :::
k
2/10
1 wpl 1749.21 os.doc
3 On 22 January 2021 we had passed the following order:
"The Petitioner-Rescue Foundation, which is an NGO, has filed
this Petition on behalf of a 14 year old minor girl, who is stated to
be victim of sexual assault. The minor girl is stated to be in her
27th week of pregnancy. It is submitted that the Report of the
Hospital reveals that it would endanger her life as well as of the
baby, if the pregnancy is continued. The Petitioner is, therefore,
seeking termination of pregnancy of the minor girl. Presently, the
minor girl is stated to be admitted in J.J. Hospital.
3. By way of interim measure, we direct that a Medical
Board be constituted by the Dean of J.J. Group of Hospitals,
Mumbai comprising of the following persons:
(a) Dean
(b) Professor & Head of Obstetrics and Gynecology Department;
(c) Professor & Head of Department of Radiology;
(d) Professor & Head of Department Pediatrics;
(e) Professor & Head of Department of Psychiatry;
4. If any of the aforesaid Doctors are not available, the
Dean shall appoint another Doctor from that Department.
5. We direct the Medical Board to examine the Petitioner
and submit a report about permitting medical termination of
pregnancy of the Petitioner to this Court before on 25 January,
2021.
6. List the Petition on 25 January, 2021 at 2.30 p.m.
7. All concerned to act on authenticated copy of this order."
K 2/10
::: Uploaded on - 25/01/2021 ::: Downloaded on - 08/02/2021 18:47:29 :::
k
3/10
1 wpl 1749.21 os.doc
4 Pursuant to the aforesaid order, the Report of the Medical Board
has been produced by the learned Government Pleader. The relevant
portion of the said Report reads as under:
"After careful evaluation of the patient and perusal of
ultrasonography report and psychiatric evaluation the committee
has come to the opinion that at present no abnormality is detected
in the fetus and the pregnant minor mother. The victim is 12 years
old and is anguished by the pregnancy.
Continuation of pregnancy in minor may lead to pregnancy related
complications like anaemia, pregnancy induced hypertension as
well as complications during labour and increased operative
interference. The continuation of pregnancy will have grave
psychological impact on the pregnant minor's mental health.
Since the pregnancy has advanced to 26.4 weeks, which is well
beyond legal limit of termination of pregnancy i.e. 20 weeks, the
termination of this pregnancy can be done only after the
permission of Honourable High Court.
At 26.4 weeks of gestation, termination of pregnancy is not
without risk for the pregnant minor. However continuation of
pregnancy and subsequent delivery will have risk of both physical
and mental ill health to minor, hence it is advisable to terminate
the pregnancy.
The Honourable High Court if permits the termination of this
pregnancy then the same can be done in any Institute that the
minor and guardians choose. The Honourable High Court is
hereby requested to instruct the guardians of the minor to bear
the responsibility of the child and its neonatal management if born
alive."
K 3/10
::: Uploaded on - 25/01/2021 ::: Downloaded on - 08/02/2021 18:47:29 :::
k
4/10
1 wpl 1749.21 os.doc
5 The Petitioner No.2-mother of XYZ is present before the Court.
Learned Counsel for the Petitioners has identified the Petitioner No.2 and
has stated that she is the mother of XYZ and that her husband has passed
away. The Court called for the official Interpreter who has explained the
contents of the Petition to the Petitioner No.2. The Government Pleader has
also interpreted and explained the Report of the Medical Board to the
Petitioner No.2. We have also interacted with the Petitioner No.2 who has
stated before us that it will be in the interest of her minor daughter that her
pregnancy is allowed to be terminated. XYZ being a minor, the consent of
Petitioner No.2, who is the natural guardian of XYZ is material.
6 We have heard learned Counsel for the Petitioners and learned
Government Pleader.
7 Sections 3 of the Medical Termination of Pregnancy Act, 1971 reads
as follows:
"3. When Pregnancies may be terminated by registered
medical practitioners -
(1) Notwithstanding anything contained in the Indian
Penal Code (45 of 1860), a registered medical practitioner shall not
be guilty of any offence under that Code or under any other law for
the time being in force, if any pregnancy is terminated by him in
accordance with the provisions of this Act.
(2) Subject to the provisions of sub-section (4), a
pregnancy may be terminated by a registered medical practitioner,
K 4/10
::: Uploaded on - 25/01/2021 ::: Downloaded on - 08/02/2021 18:47:29 :::
k
5/10
1 wpl 1749.21 os.doc
(a) where the length of the pregnancy does not
exceed twelve weeks, if such medical practitioner is, or
(b) where the length of the pregnancy exceeds twelve
weeks but does not exceed twenty weeks, if not less than two
registered medical practitioners are. of opinion, formed in good
faith, that -
(i) the continuance of the pregnancy would involve a risk
to the life of the pregnant woman or of grave injury physical or
mental health ; or
(ii) there is a substantial risk that if the child were born, it
would suffer from such physical or mental abnormalities as to be
seriously handicapped.
Explanation 1.-Where any, pregnancy is alleged by the
pregnant woman to have been caused by rape, the anguish caused
by such pregnancy shall be presumed to constitute a grave injury to
the mental health of the pregnant woman.
Explanation 2.-Where any pregnancy occurs as a result
of failure of any device or method used by any married woman or
her husband for the purpose of limiting the number of children, the
anguish caused by such unwanted pregnancy may be presumed to
constitute a grave injury to the mental health of the pregnant
woman.
(3) In determining whether the continuance of
pregnancy would involve such risk of injury to the health as is
mentioned in sub-section (2), account may be taken of the pregnant
woman's actual or reasonable foreseeable environment.
(4) (a) No pregnancy of a woman, who has not attained
the age of eighteen years, or, who, having attained the age of
K 5/10
::: Uploaded on - 25/01/2021 ::: Downloaded on - 08/02/2021 18:47:29 :::
k
6/10
1 wpl 1749.21 os.doc
eighteen years, is a (mentally ill person), shall be terminated except
with the consent in writing of her guardian.
(b) Save as otherwise provided in clause (a), no
pregnancy shall be terminated except with the consent of the
pregnant woman."
8 In Suchita Shrivastav and Another vs. Chandigarh
Administraton, (2009) 9 SCC 1, the Supreme Court had the occasion to
consider the case of the termination of pregnancy of a mentally retarted
orphan. In paras 22 to 26, the Supreme Court observed as follows:
"22 There is no doubt that a woman's right to make
reproductive choices is also a dimension of "personal liberty" as
understood under Article 21 of the Constitution of India. It is
important to recognise that reproductive choices can be exercised
to procreate as well as to abstain from procreating. The crucial
consideration is that a woman's right to privacy, dignity and bodily
integrity should be respected. This means that there should be no
restriction whatsoever on the exercise of reproductive choices
such as a woman's right to refuse participation in sexual activity or
alternatively the insistence on use of contraceptive methods.
Furthermore, women are also free to choose birth-control
methods such as undergoing sterilisation procedures. Taken to
their logical conclusion, reproductive rights include a woman's
entitlement to carry a pregnancy to its full term, to give birth and
to subsequently raise children. However, in the case of pregnant
women there is also a `compelling state interest' in protecting the
life of the prospective child. Therefore, the termination of a
pregnancy is only permitted when the conditions specified in the
K 6/10
::: Uploaded on - 25/01/2021 ::: Downloaded on - 08/02/2021 18:47:29 :::
k
7/10
1 wpl 1749.21 os.doc
applicable statute have been fulfilled. Hence, the provisions of the
MTP Act, 1971 can also be viewed as reasonable restrictions that
have been placed on the exercise of reproductive choices.
23 A perusal of the above mentioned provision makes it
clear that ordinarily a pregnancy can be terminated only when a
medical practitioner is satisfied that a
`continuance of the pregnancy would involve a risk to the
life of the pregnant woman or of grave injury to her
physical or mental health'
[as per Section 3(2)(i)] or when
"there is a substantial risk that if the child were born, it
would suffer from such physical or mental abnormalities
as to be seriously handicapped"
[as per Section 3(2)(ii)]. While the satisfaction of one
medical practitioner is required for terminating a pregnancy within
twelve weeks of the gestation period, two medical practitioners
must be satisfied about either of these grounds in order to
terminate a pregnancy between twelve to twenty weeks of the
gestation period.
24. The Explanations to Section 3 have also contemplated
the termination of pregnancy when the same is the result of a
rape or a failure of birth-control methods since both of these
eventualities have been equated with a `grave injury to the mental
health' of a woman.
K 7/10
::: Uploaded on - 25/01/2021 ::: Downloaded on - 08/02/2021 18:47:29 :::
k
8/10
1 wpl 1749.21 os.doc
25. In all such circumstances, the consent of the pregnant
woman is an essential requirement for proceeding with the
termination of pregnancy. This position has been unambiguously
stated in Section 3(4)(b) of the MTP Act, 1971.
26. The exceptions to this rule of consent have been laid
down in Section 3(4)(a) of the Act. Section 3(4)(a) lays down that
when the pregnant woman is below eighteen years of age or is a
"mentally ill" person, the pregnancy can be terminated if the
guardian of the pregnant woman gives consent for the same. The
only other exception is found in Section 5(1) of the MTP Act which
permits a registered medical practitioner to proceed with a
termination of pregnancy when he/she is of an opinion formed in
good faith that the same is "immediately necessary to save the life
of the pregnant woman". ... ... "
9 This Court (Aurangabad Bench) in ABC through her Guardian
vs. State of Maharashtra, 2018 (4) Mh.L.J. 374 while considering the case
of minor girl who was a victim of rape permitted the termination of
pregnancy of the minor girl. Similarly, another Division Bench of this Court
(Aurangabad Bench) in ABC (Minor) through her Guardian vs. The State
of Maharashtra in Writ Petition No.3053 of 2019 vide its decision dated 7
March 2019 also permitted the termination of pregnancy of a minor girl.
10 The Supreme Court in A vs. Union of India and others, (2018)
14 SCC 75, has permitted the Petitioner therein to terminate her pregnancy
of 25/26 weeks.
K 8/10
::: Uploaded on - 25/01/2021 ::: Downloaded on - 08/02/2021 18:47:29 :::
k
9/10
1 wpl 1749.21 os.doc
11 In the facts and circumstances of the present case, the Report of
the Medical Board has recommended the termination of the pregnancy of
XYZ and has stated in the said Report that if the pregnancy is allowed to be
continued it would lead to pregnancy related complications like anaemia,
pregnancy induced hypertension as well as complications during labour and
increased operative interference and the continuation of pregnancy will
have grave psychological impact on the pregnant minor's mental health. It
is further stated that the termination of pregnancy is not without risk for the
pregnant minor, however the continuation of pregnancy and subsequent
delivery will have risk of both physical and mental ill health to minor and
hence it is advisable to terminate the pregnancy.
12 In light of the above, we are inclined to allow the Petition and pass
the following order:
ORDER
i) We permit the termination of pregnancy of XYZ, which shall be carried out at the earliest and in any event before 28 January 2021.
ii) We direct that the procedure of termination of pregnancy shall be carried out at J.J. Hospital, Mumbai, under the supervision of the Medical Board and the Hospital shall ensure that XYZ is provided best available medical treatment.
iii) We direct that in the event the child is born alive, Respondent No.3 shall ensure that all necessary medical facilities are provided to the K 9/10 ::: Uploaded on - 25/01/2021 ::: Downloaded on - 08/02/2021 18:47:29 ::: k 10/10 1 wpl 1749.21 os.doc child. If XYZ and her mother Petitioner No.2 are not willing or not in a position to take responsibility of the child then the State and State Agencies will have to assume full responsibility of the child.
iv) We direct the State to bear the necessary medical expenses in respect of termination of pregnancy and health of XYZ and that of the baby, if born alive.
v) The Hospital Authorities shall take necessary blood sample and tissue sample of the feotus and shall preserve the same for the purpose of carrying out necessary tests including the DNA identification. The Investigating Officer conducting investigation (pursuant to FIR No.6 of 2021 dated 8 January 2021 registered with Wada Police Station, District Palghar) shall ensure that the samples are forwarded to Forensic Science Laboratory and the samples shall be preserved for the purpose of trial of the offence.
vi) After the medical procedure of termination of pregnancy of XYZ and her health permitting, the State Authority shall handover custody of XYZ to the Petitioner No.1-Rescue Foundation in accordance with the directions of the Child Welfare Committee dated 01.01.2021 under the provisions of the Juvenile Justice Act, 2015, subject to the further orders to be passed by the Child Welfare Committee.
13 The Petition is allowed in the aforesaid terms.
(MADHAV JAMDAR, J.) (A.A. SAYED, J.) K 10/10 ::: Uploaded on - 25/01/2021 ::: Downloaded on - 08/02/2021 18:47:29 :::